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TMI Blog2015 (8) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2008 to 20.12.2008. All the stocks were found correct but 30 gate passes were resumed during the investigation and consequently the statement of officials and Managing Director of the appellant were recorded. At the time of recording the statement of the officials of the appellant admitted their clandestine removal of the goods on the strength of gate passes without paying duty and consequent to that the duty was paid for the clearance of these 38 gate passes. It was also found that appellant has availed Cenvat Credit on steel items to the tune of Rs. 2,23,221/- which was used in civil construction of factory which was not admissible to the appellant. Further, the appellant also availed Cenvat Credit of Rs. 1,93,972/- on construction serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contravened and they are able to prove these evidence that goods have not been removed clandestinely on the strength of gate passes. Therefore, demand on duty is not sustainable. To support this contention she relied on the decision in the case of Vikram Cement (P) Ltd. Vs. CCE Kanpur-2012 (286) ELT 615 (Tri-Del) which has been affirmed by the Hon'ble High Court of Allahabad reported in 2014 (303)00 ELTA82 (Allbd). 5. She further submits that appellant has not contested the denial of Cenvat Credit on the steel items and same has been reversed along with interest. The appellant is seeking waiver of penalty on these steel items as these were in dispute during the period whether they are entitled to take Cenvat Credit on the steel items o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and other officials have admitted that they have cleared goods from their unit to other units on the strength of 38 gate passes and immediately the appellant paid the duty along with interest. Appellant has also paid 25% penalty on the said clearance which shows that appellant has admitted their fault and paid the duty accordingly. He further submits that during the course of the investigation appellant has not received the goods only invoices has been received. This shows the character of the appellant by indulging in such type of activities. For denial of Cenvat Credit on construction services she submits that the issue has been settled by Hon'ble High Court of Bombay in the case of Manikgarh Cement Vs. CCE Nagpur-2010 (20) STR 456 (B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. Counsel on this issue admittedly that the goods have been cleared on the strength of 38 gate passes clandestinely without payment of duty. Obviously, these goods were not to be recorded in the receipt units that they have received the goods without recovery of invoices in their unit. Therefore, these arguments have no force. Further, I find that it is admitted by the Managing Director as well as other officials that they have cleared goods on the strength of 38 gate passes to their other units. It means that gate passes are meant for their internal movement of goods as appellant have not supplied for any other movement in their factory is covered by gate passes and no gate pass has been produced by the appellant for verification. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is mentioned that appellant activity was detected by the Revenue on 24.08.1987 and show cause notice was issued on 04.12.1989. Keeping in view the facts and circumstances of the case and without laying any proposition of law, we hold that the department was not justified in invoking the extended period of limitation under Section 11A of the Central Excises and Salt Act, 1944 and accordingly, finding of the Tribunal on this point is reversed. We hope that the department shall initiates some action against the erring officer /official for issuing show cause notice to the assessee after a gap of approximately two years and four months from the date of inspection at the factory of the assessee." 15. By observing that the Hon'ble Apex Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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